Aguirre v 635 Madison Fee Prop. Owner LLC

2024 NY Slip Op 33391(U)

September 26, 2024

Supreme Court, New York County

Docket Number: Index No. 151111/2021

Judge: Mary V. Rosado

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
NYSCEF DOC. NO. 424 

INDEX NO. 151111/2021 

RECEIVED NYSCEF: 09/26/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON.MARYV.ROSADO 

Justice 

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JEAN AGUIRRE, 

Plaintiff, 

-v635 MADISON FEE PROPERTY OWNER LLC,TECTONIC 

BUILDERS INC.,BRONXDALE ELECTRIC 

INC.,IRONWOOD REALTY CORPORATION, RICHEMONT 

NORTH AMERICA, INC.,MONTBLANC, 

Defendants. 

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RICHEMONT NORTH AMERICA, INC. and MONTBLANC, 

Plaintiffs, 

- V -

TECTONIC BUILDERS INC. 

Defendant. 

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TECTONIC BUILDERS INC. 

Plaintiff, 

- V -

PRACTICAL PLUMBING AND HEATING INC. 

Defendant. 

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PART 33M 

INDEX NO. 151111/2021 

MOTION DATE 08/31/2024 

MOTION SEQ. NO. 004 

DECISION+ ORDER ON 

MOTION 

Third-Party 

Index No. 154132/2021 

Second Third-Party 

Index No. 595529/2021 

The following e-filed documents, listed by NYSCEF document number (Motion 004) 197, 198, 199, 200, 

201,202,203,204,205,206,207,208,209,210,211,246,251,252,253,277,278,279,282,283,284, 

285,286,287,288,289,290,291,309 

were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER 

151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY 

Motion No. 004 

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NYSCEF DOC. NO. 424 

INDEX NO. 151111/2021 

RECEIVED NYSCEF: 09/26/2024 

Upon the foregoing documents, Defendant/Second Third-Party Plaintiff Tectonic Builders 

Inc. 's ("Tectonic") motion for summary judgment on its claims for contractual indemnification 

and common law indemnification against Second Third-Party Defendant Practical Plumbing and 

Heating, Inc. ("Practical") is denied. 

I. Background 

For a more thorough recitation of the facts, the reader is referred to this Court's Decision 

and Order on motion sequence 003. 

Tectonic seeks summary judgment on its contractual indemnification and common law 

indemnification claims against Practical. Tectonic argues that Practical controlled Plaintiff Jean 

Aguirre's ("Plaintiff') work which caused his accident and provided Plaintiff with the defective 

ladder that caused him to fall. Moreover, Tectonic provides a contract executed between Tectonic 

and Practical. In the contract, Practical agreed to indemnify Tectonic for all liability for bodily 

injury resulting from the work performed pursuant to the contract. Because Tectonic argues that 

Plaintiff was injured as a result of Practical's faulty supervision and instruction of the Plaintiff, 

Tectonic argues it is entitled to indemnification pursuant to its contract. 

Plaintiff opposed Tectonic's motion and argues that Tectonic has failed to show that it 

lacked notice of the defective ladder and has failed to show that it lacked the authority to direct or 

control the means and methods of Plaintiffs work. Practical also opposes Tectonic's motion. 

Practical argues that Tectonic's witness testified that he was responsible for supervising safety on 

the site and holding weekly toolbox meetings with the various subcontractors. Practical argues that 

pursuant to Tectonic's Safety Manual, Tectonic had the responsibility to enforce all safety rules 

and procedures on the worksite. Moreover, there is testimony that although Tectonic was required 

to hold safety meetings, Practical' s witness testified that there were no such meetings held prior to 

151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY 

Motion No. 004 

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NYSCEF DOC. NO. 424 

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RECEIVED NYSCEF: 09/26/2024 

Plaintiffs accident. Practical also argues that Tectonic has not and cannot prove which ladder 

Plaintiff was using at the time of his accident, or who the owner of that ladder was, since Tectonic 

destroyed the ladder on the day of the incident. Practical argues at the very least Tectonic's motion 

should be denied as it should not be rewarded for destroying the ladder. 

In reply, Tectonic argues that even if it exercised some control over the worksite, the level 

of control exercised is insufficient to give rise to liability. It further argues there can be no real 

argument that it had notice over any defective condition because the undisputed testimony shows 

that the ladder appeared free of defects prior to the Plaintiff ascending it. 

II. Discussion 

"Summary judgment is a drastic remedy, to be granted only where the moving party has 

tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v 

Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and 

on a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]). 

Once this showing is made, the burden shifts to the party opposing the motion to produce 

evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact 

which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). 

Although a general contractor may be held absolutely liable for a breach of Labor Law 

§ 240(1 ), this does not obviate the right of a general contractor to seek full indemnification from 

the party who is responsible for the accident (McCarthy v Turner Const., Inc., 17 NY3d 369 

[2011]). To show entitlement to common-law indemnification, a party must show (I) that it has 

been held vicariously liable without proof of any negligence or actual supervision on its part, and 

(2) that the proposed indemnitor was either negligent or exercised actual supervision or control 

151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY 

Motion No. 004 

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over the injury-producing work (Naughton v City of New York, 94 AD3d 1 [1st Dept 2012]). 

"However, where a triable issue of fact exists regarding the indemnitee's negligence, a conditional 

order of summary judgment for contractual indemnification must be denied as premature" 

(Spielmann v 170 Broadway NYC LP, 187 AD3d 492,494 [1st Dept 2020]). 

Here, there are issues of fact as to Tectonic's negligence which preclude awarding 

summary judgment on its claims for indemnification. Tectonic's witness, Joseph Latona ("Mr. 

Latona") admitted that he had authority to control the manner and method of subcontractors' work 

(NYSCEF Doc. 176:6-15). He testified that he walked around the worksite to ensure 

subcontractors were adhering to safety rules (id at 127:15-20). He testified that he conducted 

toolbox safety talks (id at 152-153). It was Mr. Latona's decision to destroy ultimately the ladder 

which caused Plaintiffs accident (id. at 194). Although Mr. Latona testified that he was not present 

at the time of the accident, Peter Constantakis, Plaintiff's supervisor, testified that Mr. Latona was 

sitting at his desk in the same room where Plaintiff fell (id. at 75:5-7). Although Mr. Latona 

testified he knew someone should have been holding the ladder while Plaintiff used it, Peter 

testified that he was talking with Mr. Latona while Plaintiff used the ladder, creating an issue of 

fact as to whether Mr. Latona knew or should have known Plaintiff was using an unsecured ladder 

(id. at 139). 

Given these issues of fact and conflicting testimony, granting Tectonic summary judgment 

on its claims for common law indemnification and contractual indemnification would be premature 

(York v Tappan Zee Constructors, LLC, 224 AD3d 527, 529 [1st Dept 2024]; Bradley v NYU 

Langone Hospitals, 223 AD3d 509, 511-512 [1st Dept 2024]; Spielmann v 170 Broadway NYC 

LP, 187 AD3d 492 [1st Dept 2020] [where a triable issue of fact exists regarding the indemnitee's 

151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY 

Motion No. 004 

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negligence, a conditional order of summary judgment for contractual indemnification must be 

denied as premature]). 

Accordingly, it is hereby, 

ORDERED that Defendant/Second Third-Party Plaintiff Tectonic Builders Inc. 's motion 

for summary judgment on its claims for contractual indemnification and common law 

indemnification against Second Third-Party Defendant Practical Plumbing and Heating, Inc. is 

denied; and it is further 

ORDERED that within ten days of entry, counsel for Practical Plumbing and Heating, Inc. 

shall serve a copy of this Decision and Order, with notice of entry, on all parties via NYSCEF. 

This constitutes the Decision and Order of the Court. 

9126/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED 

SETTLE ORDER 

Q DENIED 

INCLUDES TRANSFER/REASSIGN 

151111/2021 AGUIRRE, JEAN vs. 635 MADISON FEE PROPERTY 

Motion No. 004 

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HJQN. MARY V. ROSADO, J.S.C. 

x NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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